Man Sues Wife on Abortion Done Without His Knowing

By TAMAR LEWINSpecial to the New York Times

Published: April 22, 1988

GARDEN CITY, L.I., April 21—
A Long Island orthodontist yesterday filed suit against his wife, seeking both a divorce and monetary damages because she had an abortion without his knowledge or consent.

It is the third case in as many weeks in which men across the nation have argued that fathers-to-be should have a say over whether a pregnant woman may have an abortion.

The orthodontist, David S. Ostreicher of Syosset, went beyond the claims raised in recent Indiana and Utah cases by filing suit not only against his wife, but also against the doctors who performed the abortion and the hospital where it was performed, on the grounds that they had a moral obligation to give him advance notice of the abortion.

Dr. Ostreicher claims that his wife, Toni Kleinman Ostreicher, had the abortion to spite him because he refused her pleas to rip up the prenuptial agreement the couple had signed before their marriage in 1985. According to the court papers, the abortion was performed in early February in North Shore University Hospital. 'Ripped It Out'

''This is a case of father's rights, of husband's rights,'' Dr. Ostreicher said at a news conference at his lawyer's office. ''It's a case of an outrageous act that a wife did against a husband. Without my knowledge, without my consent, she took our baby and ripped it out of her.''

Mrs. Ostreicher, who is living with her mother - also named as a defendant in the lawsuit - said she could not comment on the case, and referred calls to her lawyer, C. Judsen Cender. He said the lawsuit had no basis, either legally or factually.

''It's all fabricated,'' Mr. Cender said. ''None of the allegations are true. Not only did he know about the abortion, not only did he consent to it, it was his idea. He advised her he didn't want to support the baby. He didn't want to be a father. He's using this lawsuit to get a better financial arrangement. I think he knows that the prenuptial agreement that he rammed down her throat would not stand up in court.''

At the news conference yesterday, Dr. Ostreicher and his lawyer, Jerry Winter, said they believed New York should have a spousal notification law - and that, even without such a law, doctors had a moral obligation to inform a husband that his wife had sought an abortion.

The question of whether fathers have any rights to stop abortions has been hard fought in the wake of Roe v. Wade, the 1973 United States Supreme Court decision guaranteeing women's constitutional rights to abortion. Many states tried to enforce laws requiring a woman having an abortion to notify her husband, or, in some cases, get his consent. But in 1976, the high court struck down a Missouri law that required the husband's consent for a woman to get an abortion.

In the case in Utah, which has a notification law, a state judge issed a temporary order forbidding a pregnant 18-year-old to have an abortion, based on arguments by her estranged husband. But at a hearing a week later, the judge found no legal basis for a permanent order, and the woman had the abortion.

And last week, in Indiana, an 18-year-old woman whose boyfriend had won a court order forbidding her to have an abortion violated that order and had the abortion. The order was obtained in an unusual paternity action in behalf of the fetus.

The woman had the abortion the same day the Indiana Supreme Court was to consider whether to hear her appeal. Both sides in the case asked the court to consider the legality of the order anyway. But after the woman had the abortion, the court said there was no need for an emergency appeal, and sent the matter back to the lower courts.

The court papers filed yesterday in State Supreme Court in Nassau County tell a bitter tale of a marriage that was troubled even before Mrs. Ostreicher became pregnant.

The court papers say Mrs. Ostreicher, who is 23 years old, taunted Dr. Ostreicher, who is 36, about his ''advanced age,'' and said she had only married him for his money.